FEDERAL COURT OF AUSTRALIA
Easyway Australia Pty Ltd v Infinite Plus Pty Ltd [2011] FCA 351
Citation: Easyway Australia Pty Ltd v Infinite Plus Pty Ltd [2011] FCA 351 Parties: EASYWAY AUSTRALIA PTY LTD (ACN 104 693 763), EASYWAY FRANCHISING PTY LTD (ACN 101 858 815), ETERNITY TRADING PTY LTD (ACN 096 343 903), INFINITY ENTERPRISE PTY LTD (ACN 100 743 771), WORLD VENTURE PTY LTD (ACN 113 047 251), PERPETUAL CORPORATION PTY LTD (ACN 109 359 266) and EASY WAY QUEENSLAND PTY LIMITED (ACN 108 821 530) v INFINITE PLUS PTY LTD (ACN 136 677 453) File number: NSD 1063 of 2010 Judge: FOSTER J Date of judgment: 12 April 2011 Catchwords: TRADE PRACTICES – misleading and deceptive conduct – comparative advertising – whether figurative statements by the use of text, images and colour constituted representations to the effect that the applicants’ “Easy Way” products were inferior to the respondent’s “Chatime” products – relevant principles discussed – publications have to be evaluated as a whole – alleged representations held to have been made – injunction and corrective advertising ordered Legislation: Trade Practices Act 1974 (Cth) ss 51A, 52 and 80 Cases cited: Australian Competition & Consumer Commission v Alvaton Holdings Pty Ltd [2010] FCA 760 followed
Hoover (Australia) Pty Ltd v Email Ltd (1991) 104 ALR 369 followed
Jones v Dunkel (1959) 101 CLR 298 applied
Luxottica Retail Australia Pty Ltd v Specsavers Pty Ltd (No 2) [2010] FCA 644 followed
Medical Benefits Fund of Australia Ltd v Cassidy (2003) 135 FCR 1 appliedDate of hearing: 13 December 2010 Date of last submissions: 14 December 2010 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 104 Counsel for the Applicants: Mr FM Douglas QC, Mr LT Livingston Solicitor for the Applicants: Ma & Company Counsel for the Respondent: Mrs C Champion Solicitor for the Respondent: Etheringtons Solicitors
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 1063 of 2010
BETWEEN: EASYWAY AUSTRALIA PTY LTD (ACN 104 693 763)
First ApplicantEASYWAY FRANCHISING PTY LTD (ACN 101 858 815)
Second ApplicantETERNITY TRADING PTY LTD (ACN 096 343 903)
Third ApplicantINFINITY ENTERPRISE PTY LTD (ACN 100 743 771)
Fourth ApplicantWORLD VENTURE PTY LTD (ACN 113 047 251)
Fifth ApplicantPERPETUAL CORPORATION PTY LTD (ACN 109 359 266)
Sixth ApplicantEASY WAY QUEENSLAND PTY LIMITED (ACN 108 821 530)
Seventh ApplicantAND: INFINITE PLUS PTY LTD (ACN 136 677 453)
Respondent
JUDGE:
FOSTER J
DATE OF ORDER:
12 APRIL 2011
WHERE MADE:
SYDNEY
THE COURT DECLARES THAT:
1.By distributing and causing to be distributed in July and August 2010 the 16-page pocket sized colour booklet entitled “TOP SECRETS”, a copy of which is Exhibit C in the proceeding (the booklet), by causing to be published a full page colour advertisement on p 30 of the edition of Citywalker magazine published on 8 August 2010, a copy of which is Exhibit 1 in the proceeding (the advertisement), and…
Keep reading for free
Create a free CaseChat account to read Easyway Australia Pty Ltd v Infinite Plus Pty Ltd and more:
- Read every judgment in full
- Ask AI and get answers linked to paragraphs
- See how each paragraph was cited in later cases
- Download judgments as PDF or Word
One click creates your free account or signs you in.
By continuing you agree to the Terms and Privacy Policy.
- Case
- [2011] FCA 351
- Decision Date
CaseChat Overview and Summary
In summary, the Federal Court found that Chatime's advertisement was misleading or deceptive as it suggested that Chatime's products were superior to those of Easy Way without any factual basis. The Court ordered Chatime to cease and desist from making such representations, to deliver up any remaining copies of the advertisement for destruction, to disable and delete electronic copies, and to publish a corrective advertisement. Chatime was also ordered to pay the applicants' costs.
Orders
Orders of the court
2. Pursuant to s 80 of the Act, the respondent by itself, its officers, its servants, its agents or otherwise howsoever, be restrained from distributing or publishing or causing or permitting to be distributed or published the booklet, the advertisement, the internet post or any booklet, advertisement, internet post or other publication, whether in printed or electronic form, containing representations to the effect that the products sold by the respondent in Australia to the public are superior to the “Easy Way” products sold by the applicants in Australia to the public and, in particular, containing representations to the effect that its products are healthier, tastier, fresher and more nutritional than the “Easy Way” products sold by the applicants to the public in Australia unless there is a basis in fact for such representations to be made.
3. By 19 April 2011, the respondent, by its proper officer, make, file and serve upon the solicitors for the applicants, Ma & Company of Suite 301, 401 Sussex Street, Sydney, in the State of New South Wales, an affidavit in which the deponent sets out the number of booklets which the respondent distributed or published or caused to be distributed or published and the manner of doing so and in which the deponent identifies and quantifies any similar advertising or promotional material distributed or published by the respondent whether in a printed or electronic form.
4. By 19 April 2011, the respondent deliver up to Ma & Company for destruction all remaining copies of the booklet, the advertisement, the internet post and any other similar advertising material, whether in a printed or electronic form, in the possession, custody or power of the respondent.
5. By 19 April 2011, in relation to such offending material in electronic form, the respondent permanently disable access to and delete all material from all websites, internet and other electronic media and make, file and serve upon the applicants an affidavit by its proper officer setting out the steps taken to so disable and delete such material and the permanency of the action so taken and annexing documentary records evidencing the same.
6. Pursuant to s 80 of the Act, the respondent cause to be published at its cost corrective advertising in the first twenty pages of the next available edition of the Citywalker magazine in the form of the advertisement set out in the Schedule hereto.
7. The respondent pay the applicants’ costs of and incidental to the proceeding.
THE SCHEDULE HEREIN BEFORE REFERRED TO
MISLEADING ADVERTISING BY CHATIME
On 12 April 2011, the Federal Court of Australia concluded that an advertisement published on page 30 of the August 2010 edition of this magazine by Chatime, which compared Chatime with Easy Way, was misleading or deceptive or likely to mislead or deceive and in contravention of s 52 of the Trade Practices Act 1974 (Cth). The advertisement represented that the products sold by Chatime are healthier, fresher, tastier and of a higher quality than those sold by Easy Way.
There was and is no factual basis for suggesting that Chatime’s products are healthier, fresher, tastier or of a higher quality than those sold by Easy Way. Chatime has been ordered by the Federal Court to publish and pay for this corrective advertisement.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
On 20 August 2010, Chatime gave an undertaking to the Court (without admissions) that, until further order:(a)It would not distribute the booklet or cause it to be distributed or publish the booklet or cause it to be published;(b)It would inform the publisher of Citywalker magazine (Ozstar Media Pty Limited) of the existence of this proceeding and request that that organisation not include a copy of the advertisement in its future print runs of that magazine; and (c)It would not publish or cause to be published any advertisement consisting of or including any of the material contained in the document which was Annexure “A” to the undertaking. Annexure “A” comprised a copy of pp 2–9 of the booklet. CONSIDERATIONSome Additional Facts Bubble milk tea is a sweet tea-based beverage which originated in Taiwan. It is very popular in Taiwan and amongst Chinese communities around the world. It is becoming increasingly popular amongst non-Chinese communities. The basis of the beverage is usually black Oolong tea or green Jasmine tea. It is generally served cold and with milk, sugar syrup and toppings. The customer chooses the tea flavour as well as the topping. Included in the drink are tapioca balls known as “chewy pearls”. These “pearls” are rolled black balls which have a smooth chewy texture and which sit at the bottom of the drink. The drink is usually served in a glass or a disposable takeaway cup. The sale of bubble milk teas generates approximately 80% of the applicants’ gross sales revenue. The Easy Way business commenced in Taiwan in the early 1990s and has since expanded to a dozen other countries around the world. The applicants were the first business group to specialise in the retail sale of Taiwanese bubble milk teas in Australia. The applicants are the current market leaders in the sale of Taiwanese bubble milk teas in Australia. In addition to their extensive range of Taiwanese bubble milk teas, the applicants sell relish tea, blended ice drinks, milk shakes, iced chocolate, iced coffee, fruit punch, fruit juices, soy punch and hot tea. The applicants do not sell hamburgers, steak, instant coffee, hot coffee or coffee beans. They do not sell fried foods or snacks of a similar nature. Some of the ingredients used by the applicants in their products are fresh and some are prepared and packaged by others and supplied to the applicants in pre-packaged form. Many of the pre-packaged ingredients are imported from Taiwan. The applicants adduced evidence that suggested that their products were of good quality and that their outlets were clean and well maintained. In the proceeding, Chatime did not contend that the applicants’ products were not of good quality or that their outlets were not clean and well maintained. Nor did Chatime argue that the applicants’ products were in any way inferior to its products. Chatime accepted that there was no basis in fact for suggesting that any of its products were superior to comparable Easy Way products sold by the applicants.